Dumas v. Marchilli

United States District Court, D. Massachusetts

March 3, 2017

ROY DUMAS, Petitioner,v.RAYMOND MARCHILLI, Respondent.

OPINION AND ORDER

O'TOOLE, D.J.

A
Massachusetts Superior Court jury convicted the petitioner,
Roy Dumas, of rape of a child, indecent assault and battery
on a person fourteen or older, and four counts of rape. His
convictions were affirmed by the Massachusetts Appeals Court.
Commonwealth v. Dumas, 986 N.E.2d 878 (Mass. App.
Ct. 2013). The Massachusetts Supreme Judicial Court denied
further appellate review, and the petitioner's petition
for a writ of certiorari was denied by the Supreme Court. The
petitioner timely filed a petition for habeas relief pursuant
to 28 U.S.C. § 2254. He seeks to vacate his convictions
because he claims that the evidence was insufficient to
support his convictions and because the Massachusetts courts
retroactively applied a new interpretation of the state rape
statute against him.

I.
Background

According
to evidence favorable to the Commonwealth, the victim, the
child of Hmong refugees from Laos, was fifteen or sixteen
years old at the time of the charged offenses. Consistently
with her religious tradition, she believed that her ancestors
could influence her life, both to help and to harm her. The
petitioner held himself out as the leader of a secret,
purportedly charitable organization that only people of Asian
or Native American descent could join. The victim was
encouraged to join the organization, but was told by the
petitioner that she would have to pass some tests in order to
be admitted. The petitioner thereafter sexually assaulted the
victim on multiple occasions under the guise of tests she
needed to pass and/or penalties for breaking supposed rules.
He told the victim that he was able to communicate with her
ancestors, and if she did not comply with his sexual demands,
the victim's ancestors would hurt her or her family. The
victim believed the petitioner, and in particular believed
that the petitioner could induce the ancestors to harm her
physically. It was the Commonwealth's theory that the
petitioner's threats to cause harm to the victim with the
aid of her ancestors constituted “constructive
force” under Massachusetts law that was sufficient to
prove an element of the crime of rape by force.

The
petitioner disputes the victim's age when the first
sexual acts took place. On direct examination, the victim
testified that the first alleged assault occurred when she
was fifteen or sixteen. When asked to clarify, she stated
“I think I was fifteen.” (Suppl. Answer 441 (dkt.
no. 29).) Later in the examination, she agreed with the
prosecutor that she had been fifteen the first time the
petitioner performed a sexual act with her. On
cross-examination, she acquiesced that “possibly”
she was sixteen when the first assault took place.
(Id. at 496.)

At
least four other assaults followed the first incident, and
there seems to be no dispute that all took place when the
victim was sixteen. In each instance, the petitioner told the
victim that these sexual acts were a necessary test to enter
the organization or a penalty that she must endure or else
her ancestors would be upset with her and would harm her. The
acts included, among other things, blindfolding, being
stripped naked, and being taken deep into the woods with no
one else around. On at least one occasion, the victim began
to cry loudly and the petitioner yelled at her.

II.Standard of Review

Post-conviction
relief pursuant to § 2254 is an extraordinary remedy.
Under the standard of review established by the Antiterrorism
and Effective Death Penalty Act (“AEDPA”), a
habeas petition will not be granted “with respect to
any claim that was adjudicated on the merits in state court
proceedings” unless the state court decision was (1)
“contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States” or (2)
“resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d). Habeas relief is not warranted if the
state court's decision was merely erroneous or incorrect;
it must have been “objectively unreasonable.”
Woodford v. Visciotti, 537 U.S. 19, 27 (2002).

III.Discussion

The
petitioner contends that his § 2254 petition should be
granted on three distinct grounds. First, he contends that
there was insufficient evidence to convict him of rape of a
child because the victim was equivocal as to her age at the
time of the first incident. Second, he argues that there was
insufficient evidence to convict him of the four counts of
rape because there was insufficient evidence that he used
force to coerce the victim. Relatedly, he says that the legal
doctrine of “constructive force” was only
developed in a way to encompass his actions in judicial
decisions that were published after the commission of the
crimes, so that holding him to that standard would violate
due process.

A.
Sufficiency of the Evidence

Under
Jackson v. Virginia, the record evidence must be
substantial enough to support a finding of guilt beyond a
reasonable doubt. 443 U.S. 307, 318-19 (1979). However, in a
§ 2254 petition, claims for review under
Jackson “are subject to two layers of judicial
deference.” Coleman v. Johnson, 132 S.Ct.
2060, 2062 (2012) (per curiam). First, based on the
Jackson standard “[a] reviewing court may set
aside the jury's verdict on the ground of insufficient
evidence only if no rational trier of fact could have agreed
with the jury.” Id. (quoting Cavazos v.
Smith, 132 S.Ct. 2, 4 (2011) (per curiam)). Second,
following the standard set out in § 2254(d)(1), a
federal court may overturn a state court's sufficiency
analysis under Jackson “only if the state
court decision was objectively unreasonable.”
Id. (quoting Cavazos, 132 S.Ct. at 4)
(internal quotation mark omitted).

The
standard is high but not insurmountable. See
O'Laughlin v. O'Brien, 568 F.3d 287, 301-02 (1st
Cir. 2009) (collecting cases). The record evidence must be
sufficient for a jury to conclude that the petitioner
committed the crime beyond a reasonable doubt.
Simply because the “instant facts may support a
reasonable speculation” that the crime was committed is
not “sufficient evidence to establish [the
petitioner's] guilt.” See id. at 302.

i.
Age of the Victim

The
petitioner claims that insufficient evidence was presented at
trial to support a finding beyond a reasonable doubt that the
victim was under the age of sixteen at the time of the first
assault, and thus his conviction for rape of a child must be
overturned under Jackson. To prove the charge of
rape of a child, it was necessary for the Commonwealth to
prove beyond a reasonable doubt that the assault took place
when the victim was under the age of sixteen. Mass. Gen.
Laws, ch. 265, § 23. The Massachusetts crime of
statutory rape has only two elements: “(1) sexual
intercourse or unnatural sexual intercourse with (2) a child
under sixteen years of age.” Commonwealth v.
Bernardo B., 900 N.E.2d 834, 845 (Mass. 2009).

Evidence
of the victim's age at the first sexual encounter between
herself and the petitioner was sparse. The uncontested
evidence is that the victim turned sixteen in early April,
2003. (Suppl. Answer 433.) The first time the victim met the
petitioner, she was brought “[t]o a house on Madison
Street.” (Id. at 439.)[1] The victim testified on
direct:

Q. Do you remember what the weather was like when [a third
party] brought you there, what it was like the first time you
were brought there?

A. Springtime.

(Id.)

Q. Now, how old were you when that [first meeting] took
place, ...

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